Mohammad Faooq vs State Of U.P. And Another
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Allahabad High Court

Mohammad Faooq vs State Of U.P. And Another on 29 April, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:71602
 
Court No. - 73
 

 
Case :- APPLICATION U/S 528 BNSS No. - 1983 of 2025 (Leading Application)
 

 
Applicant :- Mohammad Faooq
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Raza Abbas,Shesh Kumar Bajpai,Syed Ali Murtaza
 
Counsel for Opposite Party :- G.A.
 
with
 
Case :- APPLICATION U/S 528 BNSS No. - 2088 of 2025 (Connected Application)
 

 
Applicant :- Mohammad Farooq
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Raza Abbas,Syed Ali Murtaza
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Shri Syed Ali Murtaza along with Shri Raza Abbas, learned counsel for the applicant in leading and connected applications and Sri S.K. Singh, learned AGA for the State.

2. The facts of the leading application are that a complaint stood lodged by the applicant under Section 138 of the N.I. Act before the Court of 7th MM, Kanpur Nagar being Complaint Case No. 584 of 2013 with relation to supply of Meat, an understanding stood entered between the applicant and the opposite party no. 2, according to which, opposite party No. 2 was to supply to Meat. However, the opposite party No. 2 failed to honor its commitment and, thus, the applicant approached the opposite party No. 2 to return the money back, accordingly, opposite party No. 2 had drawn a cheque bearing No. 332651 dated 29.08.2008 of an amount of Rs. 2,35,000/- of State Bank of India, Jabalpur, Madhya Pradesh. The said cheque was presented in the bank, HDFC Civil Lines, Kanpur Nagar which stood dishonored on account of insufficient funds by virtue of the memo dated 08.09.2008. Thereafter a statutory legal notice was issued on 23.09.2008 and since the payments were not made by the applicant, a complaint was preferred by the applicant under Section 138 of the Act against the opposite No. 2 for dishonoring of the cheque.

3. On 06.04.2009, the trial court summoned the opposite party No. 2 under Section 138 of the N.I. Act.

4. On 28.02.2023, an application came to be preferred by the opposite party No. 2 raising the issue of the maintainability of the proceedings under Section 138 of the N.I. Act before the court at Kanpur while taking a plea that the court at Jabalpur had the jurisdiction to entertain the application and to issue summons, since the cheque which was dishonored, the drawer's bank is in Jabalpur, it was also asserted that though the opposite party No. 2 had appeared before the court below and obtained bail after surrendering but while reading the complaints at a later point of time, it was discovered that the court at Kanpur had no jurisdiction which has summoned the opposite party No. 2. It was, thus, prayed that the complaint be rejected on the ground of lack of territorial jurisdiction.

5. The applicant contested the said application while contending that in view of the provisions contained under Section 138 read with Section 142 of the N.I. Act, the jurisdiction would be of the Court, where the cheque is delivered for collection through an account of the branch of the bank where the payee and the holder in the due course as the case may be maintains the account is situated i.e. in Kanpur.

6. The Court of Additional Session Judge, Kanpur Nagar rejected the applications submitted by the opposite party No. 2 for dismissing the complaint on the ground that it did not possess the territorial jurisdiction on 10.06.2024.

7. Assailing the order dated 10.06.2024, the opposite party No. 2 preferred Criminal Revision No. 290 of 2024 which came to be allowed on 26.09.2024 while setting aside the order dated 10.06.2024 remitting the matter back to the trial court to pass a fresh order. Assailing the said revisional order, the leading application has been preferred.

8. As regards, the connected application is concerned, the cheque number is 332653 for an amount of Rs.2,00,000/- which came to be dishonored against which a statutory demand notice was issued and complaint was preferred, objection was raised with regard to the territorial jurisdiction as in the leading case which came to be rejected on 10.06.2024 by the trial court against which a Criminal Revision No. 289 of 2020 came to be preferred by the opposite No. 2 which had been allowed, matter has remitted back to the trial court to pass fresh order. The order passed by the Court of Additional Sessions Judge, Kanpur Nagar in Criminal Revision No. 289 of 2024 is subject matter of challenge in connected application.

9. Learned counsel for the applicant while assailing the revisional orders in both the applications has sought to argue that they cannot be sustained even for a single moment as they proceed on misconception of facts and law.

10. Submission is that though there happened to be a typographical error in the complaint preferred by the applicant against the opposite party No. 2 under Section 138 of the N.I. Act in para 8 that the complainant presented the aforesaid cheques drawn by the accused/ opposite party no. 2 in his bank at State Bank of India, Jabalpur, Madhya Pradesh for encashment but the correct fact is that the same was deposited for encashment in HDFC, Kanpur. Contention is that the revisional court erred in law in failing to consider the overall facts and circumstances and the documents available on record which clearly showed that the cheque stood dishonored when delivered for collection through an account in a bank whereof payee or the holder of the due course situated in Kanpur. It is further contended that in reply to the application submitted by the opposite party No. 2 to reject on the ground of territorial jurisdiction, applicant had specifically raised the issue regarding territorial jurisdiction with the aid of the memo of dishonor etc. but the revisional court had overlooked the said aspect. Further submission of the learned counsel for the applicant is that the court below has further erred in law in holding that the amendments made in Section 142 of the N.I. Act by virtue of the Negotiable Instruments (Amendment) Second Ordinances, 2015 which came into force on 15.06.2015 are not retrospective. Argument is that in view of the provisions contained under Section 142 read with Section 142A of the N.I. Act, the amendments have been assigned retrospectivity with respect to the complaint which has already been filed and were pending when prior to the amendment.

11. Learned counsel for the applicant in order to buttress his submission has sought to rely upon the decision of Hon'ble Supreme Court in the case of Bridgestone India Private Limited v. Inderpal Singh; (2016) 2 SCC 75. He further submits that the interpretation so sought to be made with regard to the judgment in the case of Dashrath Rupsingh Rathod v. State of Maharashtra and another; (2014) 9 SCC 129 is wholly misconceived, particularly, in view of the judgment in the case of Bridgestone India Private Limited (supra) wherein the issue of retrospectivity came to be considered, the following was observed as under:

"13. A perusal of the amended Section 142(2), extracted above, leaves no room for any doubt, specially in view of the explanation thereunder, that with reference to an offence under Section 138 of the Negotiable Instruments Act, 1881, the place where a cheque is delivered for collection i.e. the branch of the bank of the payee or holder in due course, where the drawee maintains an account, would be determinative of the place of territorial jurisdiction.

14. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142-A was inserted into the Negotiable Instruments Act. A perusal of Sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non-obstante clause in sub-section (1) of Section 142-A. Likewise, any judgment, decree, order or direction issued by a Court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case would also not non-suit the appellant for the relief claimed.

15. We are in complete agreement with the contention advanced at the hands of the learned counsel for the appellant. We are satisfied, that Section 142(2)(a), amended through the Negotiable Instruments (Amendment) Second Ordinance, 2015, vests jurisdiction for initiating proceedings for the offence under Section 138 of the Negotiable Instruments Act, inter alia in the territorial jurisdiction of the Court, where the cheque is delivered for collection (through an account of the branch of the bank where the payee or holder in due course maintains an account). We are also satisfied, based on Section 142-A (1) to the effect, that the judgment rendered by this Court in Dashrath Rupsingh Rathod case, would not stand in the way of the appellant, insofar as the territorial jurisdiction for initiating proceedings emerging from the dishonor of the cheque in the present case arises."

12. Learned counsel for the applicant further submits that recently the Hon'ble Apex Court in Transfer Petition (CRL.) No. 608 of 2024 (M/s. Shri Sendhur Agro & Industries v. Kotak Mahindra Bank Ltd.) decided on 06.03.2024 has observed as under:

"62. A conjoint reading of Section 142(2)(a) along with the explanation thereof, makes the position emphatically clear that, when a cheque is delivered or issued to a person with liberty to present the cheque for collection at any branch of the bank where the payee or holder in due course, as the case may be, maintains the account then, the cheque shall be deemed to have been delivered or issued to the branch of the bank, in which, the payee or holder in due course, as the case may be, maintains the account, and the court of the place where such cheque was presented for collection, will have the jurisdiction to entertain the complaint alleging the commission of offence punishable under Section 138 of the N.I. Act. In that view of the position of law, the word 'delivered' used in Section 142(2)(a) of the N.I. Act has no significance. What is of significance is the expression 'for collection through an account'. That is to say, delivery of the cheque takes place where the cheque was issued and presentation of the cheque will be through the account of the payee or holder in due course, and the said place is decisive to determine the question of jurisdiction."

13. At this stage, learned counsel for the applicant submits that though in both the applications, the applicant has questioned the order dated 24.09.2024 passed in Criminal Revision No. 289 and 290 of 2024 in entirety but he confines his relief to the extent that post demand by virtue of the order dated 24.09.2024 of the revisional court, the trial court while passing a fresh order should also consider the legal submissions which the applicant seeks to raise as noticed above.

14. Learned AGA on the other hand submits that post remand by the revisional court, the trial court is to decide the matter a afresh as per the law of the land and the contentions which the applicant seeks to raise, would be considered while deciding the proceedings. Thus, no such direction is required.

15. I have heard learned counsel for the parties and gone through the records carefully.

16. Apparently, the order, which is subject matter of challenge in the present proceedings, is an order of the revisional court dated 24.09.2024 in both the applications whereby the matter has been remitted back to the court below to decide afresh while setting aside the order dated 10.06.2024 rejecting the application preferred by the accused/ opposite party No. 2 that the complaint was liable to be dismissed on the ground of territorial jurisdiction.

17. As a matter of fact, it goes without saying that once the matter stands remitted by the revisional court to the trial court to pass fresh order post setting aside the orders dated 10.06.2024 then this Court has no reason to disbelieve that legal contentions so raised by the applicants/ parties based upon the law of the land would be considered in correct perspective.

18. With the aforesaid observations, both the applications stand disposed of.

Order Date :- 29.4.2025

A. Prajapati